Respecting State Courts

The formal mechanism for selecting judges has a direct effect on the nature of the judge who will serve. A consequence of this recognition has been that various modes of judicial selection have been tried in the Western world. Ideology is only one factor that affects the selection systems used. Social policies, such as increasing the number of women and minorities on the bench, political considerations, and practical realities of legal training and judicial temperament, may also influence the formal selection scheme used in a nation.

The importance of a nation's political culture is critical for establishing priorities among these various potential objectives. The first state constitutions were drafted in 1776 in conjunction with the Declaration of Independence. The national constitution, as it is known today, was not drafted until 1787. Before that date the states had acted as a loose confederation in which each state retained significant independence of action. The governing document under which this confederation operated was the Articles of Confederation, which had been drafted shortly after independence was proclaimed.

These articles provided for a Congress of the several states, with meager powers, since exercise of important powers was contingent on consent of nine of the thirteen states and since there was no means of compelling the states to comply with determinations of the Congress. The Articles of Confederation made no provision for an executive office or a judiciary, except for ones that might be appointed by Congress for trials of piracy or crimes on the high seas. The basic inadequacies of the Confederation revolved around the inability of Congress to raise revenues or regulate commerce.

Hence, a federal convention was called in 1787 to draft amendments to the Articles of Confederation, a convention that ultimately drafted the current U. S. Constitution. In 1776 each of the original thirteen colonies began to operate autonomously under their newly drafted constitutions, although Massachusetts did not draft a constitution until 1780. The depth of commitment to familiar British traditions can be demonstrated during this period in the example of Rhode Island, which simply continued its original British charter from 1663.

There were a number of reasons for the American Revolution; the dominant one, however, was not that the colonists objected to the British system of government, but rather, because they liked it and were being deprived of some of its fundamental characteristics, such as taxation without representation and external control of their industry and commerce. Thus, that a variation of the British system of appointing judges was adopted is not surprising. All of the original state constitutions provided that judges were to be designated by the legislative body or by a combination of the governor and the legislative.

During the period between the revolution in 1776 and the drafting of the U. S. Constitution in 1787, two concepts of government dominated thought. Tensions between the two colored both constitutional debates and later issues in American politics, particularly in relation to the designation of judicial officers. The essential stress was between French intellectual notions of democracy and English liberalism, or, stated differently, between idealized agrarianism and pragmatic capitalism.

English liberalism at the time of the revolution relied heavily on the writings of Locke, Harrington, and Adam Smith. Emphasis was on social, political, and economic individualism, without the interference of government. This ideology had a particular attraction to the middle class, a group that did not want to see its ambitions thwarted by excesses of government. French democracy, on the other hand, was an intellectual movement of fierce social idealism, which claimed Rousseau as its author.

Liberty and equality were the main tenets of this school of thought. Translated into the American experience, English liberalism was favored by the middle-class mercantile interests, who sought protection for their property rights; French democracy, although more loosely defined, attracted the small property holders and agrarians. Ideologies offered abstract concepts, but there was little or no practical experience with republican or democratic forms of government in the eighteenth century.

Consequently there was an inclination to emulate the governing norms that were familiar (i. e. , that were British). The two competing approaches to the appropriate ends of government acted primarily to influence modifications of British governmental institutions that were required for adaptation to the United States. These concepts defined the basic parameters of discussions regarding selection and control of the bench. Limitations and possible variations on British modes were somewhat constrained during the revolutionary era for a number of reasons.

Among the motivations for meager experimentation with judicial offices were the novelty of constitution writing and the absence of a defined legal profession with a dominant interest in the composition of the judiciary. Both British and colonial practices had included lay judges alongside and sometimes in superior position to judges with legal training. Thus the only preconceived notions of who ought to serve on the bench, for what term, by whom named, and by whom removed were formed by the British and colonial experiences.

Popular election of judges was not the only change to be found in state constitutions, which was connected with Jacksonian democracy. Universal manhood suffrage, without property requirements, was introduced. Apportionment plans that were population-based were also common in the new state constitutions. Most elements of the Jacksonian democratic reforms, such as the extension of the franchise, have been retained or even expanded over the ensuing century. Indeed, some have proposed that this era established the fundamental practices and patterns of the future.

Little criticism has been directed at greater democratization of most elements of political life. The influence of this populist period on the judicial system has, however, drawn massive criticism, particularly in the twentieth century. The controversy begun in the first half of the nineteenth century over the selection and tenure of judges in the American states has not yet abated.